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First Substitute S.B. 75
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7 LONG TITLE
8 General Description:
9 This bill repeals the Personal Choice and Living Will Act and enacts the Advance
10 Health Care Directive Act.
11 Highlighted Provisions:
12 This bill:
13 . establishes legislative intent;
14 . defines terms;
15 . gives preference to current health care decisions;
16 . creates a presumption that an individual has capacity to make health care decisions
17 and appoint an agent;
18 . establishes:
19 . powers of a health care agent;
20 . surrogate decision makers when an agent is not available;
21 . scope of surrogate powers;
22 . priority of decision makers; and
23 . powers of court-appointed guardians;
24 . coordinates the role of agents and surrogates as personal representatives of an
25 individual;
26 . provides for the revocation of a health care directive;
27 . requires notice to health care providers of a health care directive or the appointment
28 of an agent;
29 . establishes the duties of a health care provider and a health care facility regarding
30 implementing a health care directive;
31 . creates a presumption of validity of health care directives;
32 . creates a presumptive statutory form for health care directives;
33 . prohibits the illegal destruction or forgery of a health care directive;
34 . prohibits a life or health insurer from:
35 . denying benefits under a policy because an individual signed a health insurance
36 directive which authorizes the withdrawal of life support; or
37 . requiring an individual to create a health care directive in order to be insured;
38 and
39 . provides for reciprocity for health care directives or similar documents from other
40 states.
41 Monies Appropriated in this Bill:
42 None
43 Other Special Clauses:
44 This bill takes effect on January 1, 2008.
45 Utah Code Sections Affected:
46 AMENDS:
47 62A-3-301, as last amended by Chapter 131, Laws of Utah 2003
48 76-5-111, as last amended by Chapter 108, Laws of Utah 2002
49 ENACTS:
50 75-2a-1101, Utah Code Annotated 1953
51 75-2a-1102, Utah Code Annotated 1953
52 75-2a-1103, Utah Code Annotated 1953
53 75-2a-1104, Utah Code Annotated 1953
54 75-2a-1105, Utah Code Annotated 1953
55 75-2a-1105.5, Utah Code Annotated 1953
56 75-2a-1106, Utah Code Annotated 1953
57 75-2a-1107, Utah Code Annotated 1953
58 75-2a-1108, Utah Code Annotated 1953
59 75-2a-1109, Utah Code Annotated 1953
60 75-2a-1110, Utah Code Annotated 1953
61 75-2a-1111, Utah Code Annotated 1953
62 75-2a-1112, Utah Code Annotated 1953
63 75-2a-1113, Utah Code Annotated 1953
64 75-2a-1114, Utah Code Annotated 1953
65 75-2a-1115, Utah Code Annotated 1953
66 75-2a-1116, Utah Code Annotated 1953
67 75-2a-1117, Utah Code Annotated 1953
68 75-2a-1118, Utah Code Annotated 1953
69 75-2a-1119, Utah Code Annotated 1953
70 75-2a-1120, Utah Code Annotated 1953
71 75-2a-1121, Utah Code Annotated 1953
72 75-2a-1122, Utah Code Annotated 1953
73 75-2a-1123, Utah Code Annotated 1953
74 REPEALS:
75 75-2-1101, as enacted by Chapter 173, Laws of Utah 1985
76 75-2-1102, as last amended by Chapter 129, Laws of Utah 1993
77 75-2-1103, as last amended by Chapter 129, Laws of Utah 1993
78 75-2-1104, as last amended by Chapter 129, Laws of Utah 1993
79 75-2-1105, as last amended by Chapter 129, Laws of Utah 1993
80 75-2-1105.5, as last amended by Chapter 141, Laws of Utah 1999
81 75-2-1106, as last amended by Chapter 129, Laws of Utah 1993
82 75-2-1107, as last amended by Chapter 129, Laws of Utah 1993
83 75-2-1108, as enacted by Chapter 173, Laws of Utah 1985
84 75-2-1109, as enacted by Chapter 173, Laws of Utah 1985
85 75-2-1110, as enacted by Chapter 173, Laws of Utah 1985
86 75-2-1111, as enacted by Chapter 173, Laws of Utah 1985
87 75-2-1112, as enacted by Chapter 173, Laws of Utah 1985
88 75-2-1113, as enacted by Chapter 173, Laws of Utah 1985
89 75-2-1114, as enacted by Chapter 173, Laws of Utah 1985
90 75-2-1115, as last amended by Chapter 241, Laws of Utah 1991
91 75-2-1116, as enacted by Chapter 173, Laws of Utah 1985
92 75-2-1117, as enacted by Chapter 173, Laws of Utah 1985
93 75-2-1118, as enacted by Chapter 173, Laws of Utah 1985
94 75-2-1119, as enacted by Chapter 129, Laws of Utah 1993
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96 Be it enacted by the Legislature of the state of Utah:
97 Section 1. Section 62A-3-301 is amended to read:
98 62A-3-301. Definitions.
99 As used in this part:
100 (1) "Abandonment" means any knowing or intentional action or inaction, including
101 desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
102 vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
103 medical or other health care.
104 (2) "Abuse" means:
105 (a) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
106 or knowingly placing another in fear of imminent harm;
107 (b) unreasonable or inappropriate use of physical restraint, medication, or isolation that
108 causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's
109 orders or used as an unauthorized substitute for treatment, unless that conduct furthers the
110 health and safety of the adult;
111 (c) emotional or psychological abuse;
112 (d) sexual offense as described in Title 76, Chapter 5, Offenses Against the Person; or
113 (e) deprivation of life sustaining treatment, except:
114 (i) as provided in Title 75, Chapter [
115 Advance Health Care Directive Act; or
116 (ii) when informed consent, as defined in Section 76-5-111 , has been obtained.
117 (3) "Adult" means a person who is 18 years of age or older.
118 (4) "Adult protection case file" means documents and information contained in the file
119 maintained by Adult Protective Services on a particular case, including any report or other
120 notification received by the division or Adult Protective Services.
121 (5) "Adult Protective Services" means the unit within the division responsible to
122 investigate abuse, neglect, and exploitation of vulnerable adults and provide appropriate
123 protective services.
124 (6) "Caretaker" means any person, entity, corporation, or public institution that
125 assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
126 supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
127 by blood or marriage, a household member, a person who is employed or who provides
128 volunteer work, or a person who contracts or is under court order to provide care.
129 (7) "Counsel" means an attorney licensed to practice law in this state.
130 (8) "Elder abuse" means abuse, neglect, or exploitation of an elder adult.
131 (9) "Elder adult" means a person 65 years of age or older.
132 (10) "Emergency" means a circumstance in which a vulnerable adult is at an immediate
133 risk of death or serious physical injury or is at risk of immediate, serious harm. Risk of
134 immediate, serious harm includes exploitation that results in the inability of a vulnerable adult
135 to provide funds for immediate needs, including food, shelter, and necessary medical care.
136 (11) "Emotional or psychological abuse" means intentional or knowing verbal or
137 nonverbal conduct directed at a vulnerable adult including ridiculing, intimidating, yelling,
138 swearing, threatening, isolating, coercing, harassing, or other forms of intimidating behavior
139 that results or could result in the vulnerable adult suffering mental anguish or emotional
140 distress, including fear, humiliation, degradation, agitation, confusion, or isolation.
141 (12) "Exploitation" means the offense described in Subsection 76-5-111 (4).
142 (13) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
143 psychological damage, physical injury, serious physical injury, suffering, or distress inflicted
144 knowingly or intentionally.
145 (14) "Intimidation" means communication through verbal or nonverbal conduct which
146 threatens deprivation of money, food, clothing, medicine, shelter, social interaction,
147 supervision, health care, or companionship, or which threatens isolation or abuse.
148 (15) (a) "Isolation" means knowingly or intentionally preventing a vulnerable adult
149 from having contact with another person by:
150 (i) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
151 contrary to the express wishes of the vulnerable adult, including communicating to a visitor
152 that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
153 knowing that communication to be false;
154 (ii) physically restraining the vulnerable adult in order to prevent the vulnerable adult
155 from meeting with a visitor; or
156 (iii) making false or misleading statements to the vulnerable adult in order to induce
157 the vulnerable adult to refuse to receive communication from visitors or other family members.
158 (b) The term "isolation" does not include an act intended to protect the physical or
159 mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
160 instructions of a physician or other professional advisor of the vulnerable adult.
161 (16) "Lacks capacity to consent" has the meaning as provided in Section 76-5-111 .
162 (17) "Neglect" means:
163 (a) (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
164 care, or dental, medical, or other health care; or
165 (ii) failure to provide protection from health and safety hazards or maltreatment;
166 (b) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
167 with the degree of care that a reasonable person in a like position would exercise;
168 (c) a pattern of conduct by a caretaker, without the vulnerable adult's informed consent,
169 resulting in deprivation of food, water, medication, health care, shelter, cooling, heating, or
170 other services necessary to maintain the vulnerable adult's well being;
171 (d) knowing or intentional failure by a caretaker to carry out a prescribed treatment
172 plan that causes or is likely to cause harm to the vulnerable adult;
173 (e) self-neglect by the vulnerable adult; or
174 (f) abandonment by a caretaker.
175 (18) "Physical injury" includes damage to any bodily tissue caused by nontherapeutic
176 conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
177 sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot
178 be restored to a sound and healthy condition. "Physical injury" includes skin bruising, a
179 dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding,
180 malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling,
181 injury to any internal organ, or any other physical condition that imperils the health or welfare
182 of a vulnerable adult and is not a serious physical injury as defined in this section.
183 (19) "Protected person" means a vulnerable adult for whom the court has ordered
184 protective services, including a vulnerable adult for whom emergency protective services have
185 been established under the provisions of this chapter.
186 (20) "Protective services" means any services provided by Adult Protective Services to
187 a vulnerable adult, either with the consent of the vulnerable adult or the vulnerable adult's
188 guardian or conservator, or by court order, if that adult has been abused, neglected, exploited,
189 or is in a state of self-neglect; protective services may include:
190 (a) an intake system for receiving and screening reports;
191 (b) investigation of referrals in accordance with statutory and policy guidelines;
192 (c) protective needs assessment;
193 (d) coordination and referral to community resources for services; or
194 (e) short-term, limited services including emergency shelter or respite when family or
195 other community resources are not available to provide protection.
196 (21) "Self-neglect" means the failure of a vulnerable adult to provide food, water,
197 medication, health care, shelter, cooling, heating, safety, or other services necessary to maintain
198 the vulnerable adult's well being when that failure is the result of the adult's mental or physical
199 impairment. Choice of lifestyle or living arrangements may not, by themselves, be evidence of
200 self-neglect.
201 (22) "Serious physical injury" has the meaning as provided in Section 76-5-111 .
202 (23) "Substantiated" or "substantiation" means a finding, based upon a preponderance
203 of the evidence, that there is a reasonable basis to conclude that abuse, neglect, or exploitation
204 occurred, regardless of whether there is an identified perpetrator or current need for protective
205 services. If more than one allegation is made or identified during the course of the
206 investigation, any allegation determined to meet the criteria for substantiation requires a case
207 finding of "substantiated."
208 (24) "Undue influence" occurs when a person uses the person's role, relationship, or
209 power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear
210 of a vulnerable adult, or uses the person's role, relationship, or power to gain control
211 deceptively over the decision making of the vulnerable adult.
212 (25) "Unsubstantiated" means a finding, based upon a preponderance of the evidence,
213 that there is insufficient evidence to conclude that abuse, neglect, or exploitation occurred.
214 (26) "Vulnerable adult" means an elder adult, or an adult who has a mental or physical
215 impairment which substantially affects that person's ability to:
216 (a) provide personal protection;
217 (b) provide necessities such as food, shelter, clothing, or mental or other health care;
218 (c) obtain services necessary for health, safety, or welfare;
219 (d) carry out the activities of daily living;
220 (e) manage the adult's own resources; or
221 (f) comprehend the nature and consequences of remaining in a situation of abuse,
222 neglect, or exploitation.
223 Section 2. Section 75-2a-1101 is enacted to read:
224
225 75-2a-1101. Title.
226 This part is known as the "Advance Health Care Directive Act."
227 Section 3. Section 75-2a-1102 is enacted to read:
228 75-2a-1102. Intent statement.
229 (1) The Legislature finds:
230 (a) developments in health care technology make possible many alternatives for
231 treating medical conditions and make possible the unnatural prolongation of life;
232 (b) individuals should have the clear legal choice to:
233 (i) accept or reject health care, even if rejecting health care will result in death sooner
234 than death would be expected to occur if rejected health care were started or continued;
235 (ii) be spared unwanted procedures; and
236 (iii) be permitted to die with a maximum of dignity and function and a minimum of
237 pain;
238 (c) Utah law should:
239 (i) provide individuals with a legal tool to designate a health care agent and express
240 preferences about health care options to go into effect only after the individual loses the ability
241 to make or communicate health care decisions, including decisions about end-of-life care; and
242 (ii) promote a health care directive system that can be administered effectively within
243 the health care system;
244 (d) surrogate decisions made on behalf of a person who previously had capacity to
245 make health care decisions, but who has lost health care decision making capacity should be
246 based on:
247 (i) input from the incapacitated person, to the extent possible under the circumstances;
248 (ii) specific preferences expressed by the individual prior to the loss of health care
249 decision making capacity;
250 (iii) the surrogate's understanding of the individual's health care preferences; and
251 (iv) the surrogate's understanding of what the individual would have wanted under the
252 circumstances; and
253 (e) surrogate decisions made on behalf of an individual who has never had health care
254 decision making capacity should be made on the basis of the individual's best interest.
255 (2) In recognition of the dignity and privacy that all individuals are entitled to expect,
256 and to protect the right of an individual to refuse to be treated without the individual's consent,
257 the Legislature declares that this state recognizes the right to make binding health care
258 directives directing health care providers to:
259 (a) provide life sustaining or life supporting medically indicated health care;
260 (b) withhold or withdraw health care; or
261 (c) provide health care only to the extent set forth in a health care directive.
262 Section 4. Section 75-2a-1103 is enacted to read:
263 75-2a-1103. Definitions.
264 As used in this part:
265 (1) "Agent" means a person designated in an advance health care directive to make
266 health care decisions for the declarant.
267 (2) "Best interest" means that the benefits to the individual resulting from a treatment
268 outweigh the burdens to the individual resulting from the treatment, taking into account:
269 (a) the effect of the treatment on the physical, emotional, and cognitive functions of the
270 individual;
271 (b) the degree of physical pain or discomfort caused to the individual by the treatment
272 or the withholding or withdrawal of treatment;
273 (c) the degree to which the individual's medical condition, the treatment, or the
274 withholding or withdrawal of treatment, result in a severe and continuing impairment of the
275 dignity of the individual by subjecting the individual to humiliation and dependency;
276 (d) the effect of the treatment on the life expectancy of the individual;
277 (e) the prognosis of the individual for recovery with and without the treatment;
278 (f) the risks, side effects, and benefits of the treatment, or the withholding or
279 withdrawal of treatment; and
280 (g) the religious beliefs and basic values of the individual receiving treatment, to the
281 extent these may assist the decision maker in determining the best interest.
282 (3) "Capacity to appoint an agent" means that the individual understands the
283 consequences of appointing a particular person as agent.
284 (4) "Declarant" means an individual who has signed or directed the signing of a health
285 care directive.
286 (5) "Default surrogate decision maker" means the person who may make decisions for
287 an individual when either:
288 (a) an agent has not been appointed; or
289 (b) an agent is not able or available to make decisions for a declarant.
290 (6) "Generally accepted health care standards":
291 (a) is defined only for the purpose of:
292 (i) this part and does not define the standard of care for any other purpose under Utah
293 law; and
294 (ii) enabling health care providers to interpret the statutory form set forth in Section
295 75-2a-1116 ; and
296 (b) means the standard of care that justifies a provider in declining to provide life
297 sustaining or life supporting care because the proposed life sustaining care:
298 (i) will not prevent or reduce the deterioration in the health or functional status of an
299 individual;
300 (ii) will not prevent the impending death of an individual; or
301 (iii) will impose more burden on the individual than any expected benefit to the
302 individual.
303 (7) "Guardian" means a court-appointed guardian.
304 (8) "Health care" means any care, treatment, service, or procedure to improve,
305 maintain, diagnose, or otherwise affect an individual's physical or mental condition.
306 (9) "Health care decision":
307 (a) means a decision about an individual's health care made by an individual or the
308 individual's surrogate, that is communicated to a health care provider;
309 (b) includes:
310 (i) selection and discharge of a health care provider and a health care facility;
311 (ii) approval or disapproval of diagnostic tests, procedures, programs of medication,
312 and orders not to resuscitate; and
313 (iii) directions to provide, withhold, or withdraw artificial nutrition and hydration and
314 all other forms of health care; and
315 (c) does not include decisions about the individual's financial affairs or social
316 interactions other than as indirectly affected by the health care decision.
317 (10) "Health care decision making capacity" means an individual's ability to make an
318 informed decision about receiving or refusing health care, including:
319 (a) the ability to understand the nature, extent, or probable consequences of the health
320 care;
321 (b) the ability to make a rational evaluation of the burdens, risks, benefits, and
322 alternatives to the proposed health care; and
323 (c) the ability to communicate a decision.
324 (11) "Health care directive":
325 (a) includes:
326 (i) a designation of an agent to make health care decisions for an individual when the
327 individual cannot make or communicate health care decisions; or
328 (ii) an expression of preferences about health care decisions; and
329 (b) may take one of the following forms:
330 (i) a written document, voluntarily executed by an individual in accordance with the
331 requirements of this part; or
332 (ii) a witnessed oral statement, made by an individual, in accordance with the
333 requirements of this part.
334 (12) "Health care facility" means:
335 (a) a health care facility as defined in Title 26, Chapter 21, Health Care Facility
336 Licensing and Inspection Act; and
337 (b) private offices of physicians, dentists, and other health care providers licensed to
338 provide health care under Title 58, Occupations and Professions.
339 (13) "Health care provider" is defined in Section 78-14-3 .
340 (14) "Individual":
341 (a) means:
342 (i) a person 18 years of age or older; or
343 (ii) an emancipated minor as defined in Sections 78-3a-1001 to 78-3a-1105 ; and
344 (b) includes:
345 (i) a declarant; and
346 (ii) a person who has not completed an advance health care directive.
347 (15) "Reasonably available" means:
348 (a) readily able to be contacted without undue effort; and
349 (b) willing and able to act in a timely manner considering the urgency of the
350 individual's health care needs.
351 (16) "Surrogate" means a decision maker who is:
352 (a) an appointed agent;
353 (b) a default surrogate decision maker under the provisions of Section 75-2a-1107 ; or
354 (c) a court-appointed guardian.
355 Section 5. Section 75-2a-1104 is enacted to read:
356 75-2a-1104. Capacity to make health care decisions -- Presumption -- Overcoming
357 presumption.
358 (1) An individual is presumed to have:
359 (a) health care decision making capacity; and
360 (b) capacity to make or revoke a health care directive.
361 (2) To overcome the presumption of capacity, a physician who has personally
362 examined the individual and assessed the individual's health care decision making capacity
363 must:
364 (a) find that the individual lacks health care decision making capacity;
365 (b) record the finding in the individual's medical chart including an indication of
366 whether the individual is likely to regain health care decision making capacity; and
367 (c) make a reasonable effort to communicate the determination to:
368 (i) the individual;
369 (ii) other health care providers or health care facilities that the physician would
370 routinely inform of such a finding; and
371 (iii) if the individual has a surrogate, any known surrogate.
372 (3) (a) If the health care provider finds that an individual lacks health care decision
373 making capacity in accordance with Subsection (2), the individual may at any time, challenge
374 the finding by:
375 (i) submitting a written notice of the challenge to the health care provider; or
376 (ii) orally informing the health care provider of the challenge.
377 (b) A health care provider who is informed of a challenge pursuant to Subsection (3)(a)
378 shall promptly inform an individual, if any, who is serving as surrogate of the individual's
379 challenge.
380 (c) A surrogate informed of a challenge to a finding under this section, or the
381 individual if no surrogate is acting on the individual's behalf, shall inform the following of the
382 individual's challenge:
383 (i) any other health care providers involved in the individual's care; and
384 (ii) the health care facility, if any, in which the individual is receiving care.
385 (d) An individual's challenge to a finding under this section is binding on a health care
386 provider and a health care facility unless otherwise ordered by a court.
387 (e) If an individual does not challenge a finding, the health care provider and health
388 care facility may rely on a surrogate to make health care decisions for the individual.
389 (4) A health care professional or health care facility providing care to the individual
390 that relies on a surrogate to make decisions on behalf of an individual has an ongoing
391 obligation to consider whether the individual continues to lack health care decision making
392 capacity.
393 (5) If at any time a health care provider finds, based on an examination and assessment,
394 that the individual has regained health care decision making capacity, the health care provider
395 shall record the results of the assessment in the individual's medical record, and the individual
396 can direct his health care.
397 Section 6. Section 75-2a-1105 is enacted to read:
398 75-2a-1105. Capacity to appoint an agent.
399 (1) An individual is presumed to have the capacity to complete an advance health care
400 directive.
401 (2) An individual who is found to lack health care decision making capacity under the
402 provisions of Section 75-2a-1104 :
403 (a) lacks the capacity to give an advance health care directive, including Part II of the
404 form created in Section 75-2a-116 , or any other substantially similar form expressing a health
405 care preference; and
406 (b) may retain the capacity to appoint an agent and complete Part I of the form created
407 in Section 75-2a-116 .
408 (3) The following factors shall be considered by a health care provider, attorney, or
409 court when determining whether an individual described in Subsection (2)(b) has retained the
410 capacity to appoint an agent:
411 (a) whether the individual has expressed over time an intent to appoint the same person
412 as agent;
413 (b) whether the choice of agent is consistent with past relationships and patterns of
414 behavior between the individual and the prospective agent, or, if inconsistent, whether there is
415 a reasonable justification for the change; and
416 (c) whether the individual's expression of the intent to appoint the agent occurs at times
417 when, or in settings where, the individual has the greatest ability to make and communicate
418 decisions.
419 Section 7. Section 75-2a-1105.5 is enacted to read:
420 75-2a-1105.5. Emergency medical services -- Physician order to withhold life
421 sustaining procedures.
422 (1) (a) The following persons may direct an emergency medical service provider
423 licensed or certified under Title 26, Chapter 8a, Utah Emergency Medical Services System Act,
424 who responds to a call to provide emergency medical services as defined in Section 26-8a-102 ,
425 to withhold all life sustaining procedures:
426 (i) an individual over the age of 18;
427 (ii) an emancipated minor; or
428 (iii) the following person, if the person has a physician's order to withhold life
429 sustaining procedures that is issued in compliance with this section:
430 (A) a parent or legal guardian of a minor;
431 (B) a legal guardian appointed for an individual; or
432 (C) a surrogate.
433 (b) A person described in Subsection (1)(a)(iii) may direct an emergency service
434 provider to withhold life sustaining procedures if the person has a physician's order:
435 (i) made in compliance with Subsection (4); and
436 (ii) for a minor, based on two physicians certifying that in their clinical judgment an
437 order to withhold life sustaining treatment is in the best interest of the individual.
438 (c) The physician order is binding upon emergency medical services providers only if
439 the physician order is in compliance with Subsections (2) and (4).
440 (2) (a) The Department of Health shall by administrative rule establish a uniform
441 system to allow emergency medical service providers to readily identify persons who have
442 obtained a physician order under this section.
443 (b) The system may provide for:
444 (i) personal, tamper-proof identifying bracelets;
445 (ii) forms;
446 (iii) the presence of the physician's orders on a form in compliance with Subsection (4)
447 and approved by the Department of Health; or
448 (iv) some other system approved by the Department of Health which clearly identifies
449 the individual as one who has a continued intent to be readily identified as a person with a
450 physician's order to withhold life support.
451 (3) An emergency medical services provider is not bound to act in accordance with a
452 physician order issued under this section unless the physician order complies with the
453 administrative rules adopted by the Department of Health in accordance with this section.
454 (4) A physician order made under this section shall be:
455 (a) in writing and on a form approved by the Department of Health;
456 (b) signed by:
457 (i) the declarant;
458 (ii) a person in the declarant's presence and by the declarant's expressed direction;
459 (iii) the parent or legal guardian of a minor; or
460 (iv) if the declarant does not have the ability to give current directions concerning the
461 declarant's care and treatment, the surrogate or class of surrogates with the highest priority
462 under Section 75-2a-1110 ;
463 (c) dated;
464 (d) signed, completed, and certified by the declarant's licensed health care professional,
465 acting within the scope of practice;
466 (e) signed pursuant to Subsection (4)(b); and
467 (f) if for a minor, in compliance with Subsection (1)(b).
468 (5) A physician order made under this section takes precedence over a directive made
469 under Section 75-2a-1106 , but only to the extent of a conflict.
470 (6) An individual who wishes to revoke a physician order made under this section may
471 do so by:
472 (a) orally informing emergency service personnel;
473 (b) writing "void" across the form, or burning, tearing, or otherwise destroying or
474 defacing the document, bracelet, or other evidence of the physician order, or by asking another
475 person to do the same on the individual's behalf;
476 (c) signing or directing another person to sign a written revocation on the individual's
477 behalf;
478 (d) stating that the individual wishes to revoke the order in the presence of a witness
479 who is age 18 or older; or
480 (e) signing a new physician order.
481 (7) (a) The Department of Health shall adopt rules in accordance with Title 63, Chapter
482 46a, Utah Administrative Rulemaking Act, to:
483 (i) create the forms and systems required by Subsections (2) and (4); and
484 (ii) develop uniform instructions for the form established in Section 75-2a-1116 .
485 (b) The Department of Health may assist others with training of health care
486 professionals regarding this chapter.
487 Section 8. Section 75-2a-1106 is enacted to read:
488 75-2a-1106. Advance health care directive -- Appointment of agent -- Powers of
489 agent -- Health care directions.
490 (1) (a) An individual may make an advance health care directive, in which the
491 individual may:
492 (i) appoint a health care agent or choose not to appoint a health care agent;
493 (ii) give directions for the care of the individual after the individual loses health care
494 decision making capacity or chooses not to give directions;
495 (iii) state conditions that must be met before life sustaining treatment may be withheld
496 or withdrawn;
497 (iv) authorize an agent to consent to the individual's participation in medical research;
498 (v) nominate a guardian;
499 (vi) authorize an agent to consent to organ donation;
500 (vii) expand or limit the powers of a health care agent; and
501 (viii) designate the agent's access to the individual's medical records.
502 (b) An advance health care directive may be oral or written.
503 (c) An advance health care directive shall be witnessed by an individual who is not:
504 (i) the person who signed the directive on behalf of the declarant;
505 (ii) related to the declarant by blood or marriage;
506 (iii) entitled to any portion of the declarant's estate according to the laws of intestate
507 succession of this state or under any will or codicil of the declarant;
508 (iv) directly financially responsible for the declarant's medical care;
509 (v) a health care provider who is providing care to the declarant or an administrator at a
510 health care facility in which the declarant is receiving care; or
511 (vi) the appointed agent.
512 (d) The witness to an oral advance health care directive shall state the circumstances
513 under which the directive was made.
514 (2) Unless otherwise directed in a health care directive, the authority of an agent:
515 (a) is effective only after a health care provider makes a determination of incapacity as
516 provided in Section 75-2a-1104 ;
517 (b) remains in effect during any period of time in which the declarant lacks capacity to
518 appoint an agent or make health care decisions; and
519 (c) ceases to be effective when:
520 (i) a declarant disqualifies an agent or revokes the health care directive;
521 (ii) a health care provider finds that the declarant has health care decision making
522 capacity;
523 (iii) a court issues an order invalidating a health care directive or the application of the
524 health care directive; or
525 (iv) the individual has contested the determination of incapacity under the provisions
526 of Subsection 75-2a-1104 (3).
527 (3) An agent appointed under the provisions of this section may not be a health care
528 provider for the declarant, or an owner, operator, or employee of the health care facility at
529 which the declarant is receiving care unless the agent is related to the declarant by blood,
530 marriage, or adoption.
531 (4) If the declarant does not specify the agent's access to medical records in an advance
532 health care directive, the agent's access to medical records is governed by Section 75-2a-1112 .
533 (5) An agent appointed by an individual is not subject to civil or criminal liability or to
534 claims of unprofessional conduct for health care decisions made in accordance with Section
535 75-2a-1109 and made in good faith.
536 Section 9. Section 75-2a-1107 is enacted to read:
537 75-2a-1107. Default surrogates.
538 (1) (a) Any member of the class of people described in Subsection (1)(b) may act as an
539 individual's surrogate health care decision maker if:
540 (i) the appointed agent or court-appointed guardian is absent or not reasonably
541 available; and
542 (ii) the member of the class described in Subsection (1)(b) is:
543 (A) over 18 years of age;
544 (B) has health care decision making capacity;
545 (C) is reasonably available; and
546 (D) has not been disqualified by the individual.
547 (b) The following classes of the individual's family, in descending order of priority,
548 may act as the individual's surrogate, however an individual in a lower priority class has no
549 rights to direct an individual's care if a member of a higher priority class is able and willing to
550 act as surrogate:
551 (i) the individual's spouse, unless:
552 (A) divorced or legally separated from the individual; or
553 (B) a court finds that the spouse has acted in a manner that should preclude the spouse
554 from having a priority position as a default surrogate;
555 (ii) a child;
556 (iii) a parent;
557 (iv) a sibling;
558 (v) a grandparent; or
559 (vi) a grandchild.
560 (2) If the family members designated in Subsection (1)(b) are not reasonably available
561 to act as a surrogate decision maker, a person other than those designated in Subsection (1)
562 may act as a surrogate if the person:
563 (a) has health care decision making capacity;
564 (b) has exhibited special care and concern for the patient;
565 (c) is familiar with the patient's personal values; and
566 (d) is reasonably available to act as a surrogate.
567 (3) A surrogate shall communicate his assumption of authority as promptly as
568 practicable to the members of a class who:
569 (a) have an equal or higher priority; and
570 (b) can be readily contacted.
571 (4) A health care provider shall comply with the decision of a majority of the members
572 of a class who have communicated their views to the provider if:
573 (a) more than one member of a class assumes authority to act as default surrogate;
574 (b) the members of the class do not agree on a health care decision; and
575 (c) the health care provider is informed of the disagreement among the members of the
576 class.
577 (5) (a) An individual may at any time disqualify a default surrogate, including a
578 member of the individual's family, from acting as the individual's surrogate by:
579 (i) a signed writing;
580 (ii) personally informing a witness of the disqualification so long as the witness is not:
581 (A) related to the individual by blood or marriage;
582 (B) entitled to any portion of the declarant's estate according to the laws of intestate
583 succession of this state or under any will or codicil of the declarant;
584 (C) directly financially responsible for the declarant's medical care;
585 (D) a health care provider who is providing care to the declarant or an administrator at
586 a health care facility in which the declarant is receiving care; or
587 (E) an individual who would become a default surrogate after the disqualification; or
588 (iii) verbally informing the default surrogate of the disqualification.
589 (b) Disqualification of a default surrogate is effective even if the individual has been
590 determined to lack health care decision making capacity.
591 (6) If reasonable doubt exists regarding the status of an individual claiming the right to
592 act as a default surrogate, the health care provider may:
593 (a) require the person to provide a sworn statement giving facts and circumstances
594 reasonably sufficient to establish the claimed authority; or
595 (b) seek a ruling from the court under Section 75-2a-1119 .
596 (7) A health care provider may seek a ruling from a court pursuant to Section
597 75-2a-1119 if the health care provider has evidence that a surrogate is making decisions that
598 are inconsistent with the individual's wishes or preferences.
599 Section 10. Section 75-2a-1108 is enacted to read:
600 75-2a-1108. Effect of current health care preferences -- When directive takes
601 effect.
602 (1) An individual with health care decision making capacity retains the right to make
603 health care decisions as long as the individual has health care decision making capacity as
604 defined in Section 75-2a-1103 . For purposes of this part, the inability to communicate through
605 speech does not mean that the individual lacks health care decision making capacity.
606 (2) An individual's current health care decisions, however expressed or indicated,
607 always supersede an individual's prior decisions or health care directives.
608 (3) An individual's health care directive takes effect only after the individual loses
609 health care decision making capacity or the individual grants current authority to an agent in
610 accordance with Section 75-2a-1106 .
611 Section 11. Section 75-2a-1109 is enacted to read:
612 75-2a-1109. Surrogate decision making -- Scope of authority.
613 (1) A surrogate decision maker acting under the authority of either Section 75-2a-1106
614 or 75-2a-1107 shall make health care decisions in accordance with:
615 (a) the individual's current preferences, to the extent possible;
616 (b) the individual's written or oral health care directions, if any, unless the health care
617 directive indicates that the surrogate may override the individual's health care directions; and
618 (c) other wishes, preferences, and beliefs, to the extent known to the surrogate.
619 (2) If the surrogate does not know, and has no ability to know, the wishes or
620 preferences of the individual, the surrogate shall make a decision based upon an objective
621 determination of what is in the individual's best interest.
622 (3) A surrogate acting under authority of Sections 75-2a-1106 and 75-2a-1107 :
623 (a) may not admit the individual to a licensed health care facility for long-term
624 custodial placement other than for assessment, rehabilitative, or respite care without the
625 consent of the individual; and
626 (b) may make health care decisions, including decisions to terminate life sustaining
627 treatment for the individual in accordance with Subsections (1) and (2).
628 (4) A surrogate acting under authority of this section is not subject to civil or criminal
629 liability or claims of unprofessional conduct for surrogate health care decisions made in good
630 faith.
631 Section 12. Section 75-2a-1110 is enacted to read:
632 75-2a-1110. Priority of decision makers.
633 The following is the order of priority of those authorized to make health care decisions
634 on behalf of an individual who lacks decision making capacity:
635 (1) a health care agent appointed by an individual under the provisions of Section
636 75-2a-1106 unless the agent has been disqualified by:
637 (a) the individual; or
638 (b) a court of law;
639 (2) a court-appointed guardian; or
640 (3) a default surrogate acting under authority of Section 75-2a-1107 .
641 Section 13. Section 75-2a-1111 is enacted to read:
642 75-2a-1111. Decisions by guardian.
643 (1) A court-appointed guardian shall comply with the individual's advance health care
644 directive and may not revoke the individual's advance health care directive unless the court
645 expressly revokes the individual's directive.
646 (2) A health care decision of an agent takes precedence over that of a guardian, in the
647 absence of a court order to the contrary.
648 (3) Except as provided in Subsections (1) and (2), a health care decision made by a
649 guardian for the individual is effective without judicial approval.
650 (4) A guardian is not subject to civil or criminal liability or to claims of unprofessional
651 conduct for surrogate health care decision in accordance with Section 75-2a-1109 made in
652 good faith.
653 Section 14. Section 75-2a-1112 is enacted to read:
654 75-2a-1112. Personal representative status.
655 A surrogate or a guardian appointed in compliance with this part, becomes a personal
656 representative for the individual under the Health Insurance Portability and Accountability Act
657 of 1996 when:
658 (1) the individual loses health care decision making capacity;
659 (2) the individual grants current authority to the surrogate in accordance with Section
660 75-2a-1106 either:
661 (a) in writing;
662 (b) orally; or
663 (c) by other expression before a witness who is not the surrogate or agent; or
664 (3) the court appoints a guardian authorized to make health care decisions on behalf of
665 the individual.
666 Section 15. Section 75-2a-1113 is enacted to read:
667 75-2a-1113. Revocation of directive.
668 (1) An advanced directive may be revoked at any time by the declarant by:
669 (a) writing "void" across the document;
670 (b) obliterating, burning, tearing, or otherwise destroying or defacing the document in
671 any manner indicating an intent to revoke;
672 (c) instructing another to do one of the acts described in Subsection (1)(a) or (b);
673 (d) a written revocation of the directive signed and dated by:
674 (i) the declarant; or
675 (ii) a person:
676 (A) signing on behalf of the declarant; and
677 (B) acting at the direction of the declarant;
678 (e) an oral expression of an intent to revoke the directive in the presence of a witness
679 who is age 18 years or older and who is not:
680 (i) related to the declarant by blood or marriage;
681 (ii) entitled to any portion of the declarant's estate according to the laws of intestate
682 succession of this state or under any will or codicil of the declarant;
683 (iii) directly financially responsible for the declarant's medical care;
684 (iv) a health care provider who is providing care to the declarant or an administrator at
685 a health care facility in which the declarant is receiving care; or
686 (v) the person who will become agent or default surrogate after the revocation; or
687 (f) a decree of annulment, divorce, dissolution of marriage, or legal separation that
688 revokes the designation of a spouse as an agent, unless:
689 (i) otherwise specified in the decree; or
690 (ii) the declarant has affirmed the intent to retain the agent subsequent to the
691 annulment, divorce, or legal separation.
692 (2) An advance health care directive that conflicts with an earlier advance health care
693 directive revokes the earlier directive to the extent of the conflict.
694 Section 16. Section 75-2a-1114 is enacted to read:
695 75-2a-1114. Notification to health care provider -- Obligations of health care
696 providers -- Liability.
697 (1) It is the responsibility of the declarant or surrogate, to the extent that the
698 responsibility is not assigned to a health care provider or health care facility by state or federal
699 law, to notify or provide for notification to a health care provider and a health care facility of:
700 (a) the existence of a health care directive;
701 (b) the revocation of a health care directive;
702 (c) the existence or revocation of appointment of an agent or default surrogate;
703 (d) the disqualification of a default surrogate; or
704 (e) the appointment or revocation of appointment of a guardian.
705 (2) (a) A health care provider or health care facility is not bound by a health care
706 directive, a revocation of a health care directive, or a disqualification of a surrogate until the
707 health care provider or health care facility has received a copy of a directive or revocation of
708 the health care directive, or the disqualification of the surrogate. There is no criminal or civil
709 liability on the part of any person for failing to act upon a health care directive or a revocation
710 of a directive, or disqualification of a surrogate unless that person has actual knowledge of the
711 instructions in a health care directive, revocation of the directive, or disqualification of a
712 surrogate.
713 (b) A health care provider and health care facility that is notified under Subsection (1)
714 shall include in the individual's medical record:
715 (i) the health care directive or a copy of it, a revocation of a health care directive, or a
716 disqualification of a surrogate; and
717 (ii) the date, time, and place in which any written or oral notice of the document
718 described in this Subsection (2)(b) is received.
719 (3) A health care provider or health care facility acting in good faith and in accordance
720 with generally accepted health care standards is not subject to civil or criminal liability or to
721 discipline for unprofessional conduct for:
722 (a) complying with a health care decision made by a surrogate apparently having
723 authority to make a health care decision for an individual, including a decision to withhold or
724 withdraw health care;
725 (b) declining to comply with a health care decision of a surrogate based on a belief that
726 the surrogate then lacked authority;
727 (c) declining to comply with a health care decision of an individual who lacks decision
728 making capacity;
729 (d) seeking a judicial determination under Section 75-2a-1119 of:
730 (i) the validity of a health care directive;
731 (ii) the validity of directions from a surrogate or guardian;
732 (iii) the decision making capacity of an individual who challenges a physician's finding
733 of incapacity; or
734 (iv) the authority of a guardian or surrogate; or
735 (e) complying with an advance health care directive and assuming that the directive
736 was valid when made, and has not been revoked or terminated.
737 (4) (a) Health care providers and health care facilities shall:
738 (i) cooperate with a person authorized under this part to make written directives
739 concerning health care;
740 (ii) unless the provisions of Subsection (4)(b) apply, comply with:
741 (A) a health care decision of an individual; and
742 (B) a health care decision made by a surrogate then authorized to make health care
743 decisions for an individual, to the same extent as if the decision had been made by the
744 individual; and
745 (iii) before implementing a health care decision made by a surrogate, make a
746 reasonable attempt to communicate to the individual:
747 (A) the decision made; and
748 (B) the identity of the surrogate making the decision.
749 (b) A health care provider or health care facility may decline to comply with a health
750 care instruction or health care decision if:
751 (i) in the opinion of the health care provider:
752 (A) the individual lacks health care decision making capacity;
753 (B) the surrogate lacks health care decision making capacity;
754 (C) the health care provider has evidence that the surrogate's instructions are
755 inconsistent with the individual's health care instructions, or, for an individual who has always
756 lacked health care decision making capacity, that the surrogate's instructions are inconsistent
757 with the best interest of the individual; or
758 (D) there is reasonable doubt regarding the status of an individual claiming the right to
759 act as a default surrogate, in which case the health care provider shall comply with Subsection
760 75-2a-1107 (6); or
761 (ii) the health care provider declines to comply for reasons of conscience.
762 (c) A health care provider or health care facility that declines to comply with a health
763 care instruction in accordance with Subsection (4)(b) must:
764 (i) promptly inform the individual and any agent, surrogate, or guardian of the reason
765 for refusing to comply with the health care instruction;
766 (ii) make a good faith attempt to resolve the conflict; and
767 (iii) provide continuing care to the individual until the issue is resolved or until a
768 transfer can be made to a health care provider or health care facility that will implement the
769 requested instruction or decision.
770 (d) A health care provider or health care facility that declines to comply with a health
771 care instruction, after meeting the obligations set forth in Subsection (4)(c) may transfer the
772 individual to a health care provider or health care facility that will carry out the requested
773 health care decisions.
774 (e) A health care facility may decline for reasons of conscience under Subsection
775 (4)(b)(ii) if:
776 (i) the health care decision or instruction is contrary to a policy of the facility that is
777 expressly based on reasons of conscience;
778 (ii) the policy was timely communicated to the individual and the individual's
779 surrogate;
780 (iii) the facility promptly informs the individual, if possible, and any surrogate then
781 authorized to make decisions for the individual;
782 (iv) the facility provides continuing care to the individual until a transfer can be made
783 to a health care facility that will implement the requested instruction or decision; and
784 (v) unless the individual or surrogate then authorized to make health care decisions for
785 an individual refuses assistance, immediately make all reasonable efforts to assist in the
786 transfer of the individual to another health care facility that will carry out the instructions or
787 decisions.
788 (5) A health care provider and health care facility:
789 (a) may not require or prohibit the creation or revocation of an advance health care
790 directive as a condition for providing health care; and
791 (b) shall comply with all state and federal laws governing advance health care
792 directives.
793 Section 17. Section 75-2a-1115 is enacted to read:
794 75-2a-1115. Presumption of validity of directive.
795 (1) A health care directive executed under this part is presumed valid and binding.
796 (2) Health care providers and health care facilities, in the absence of notice to the
797 contrary, shall presume that a declarant who executed a health care directive, whether or not in
798 the presence of a health care provider, had the required decision making capacity at the time the
799 declarant signed the directive. The fact a declarant executed a health care directive shall not be
800 construed as an indication that the declarant was suffering from mental illness or lacked
801 decision making capacity.
802 Section 18. Section 75-2a-1116 is enacted to read:
803 75-2a-1116. Optional form.
804 (1) The form created in Subsection (2), or a substantially similar form is presumed
805 valid under this chapter.
806 (2) The following form is presumed valid under Subsection (1):
807
808
809 Part I: Allows you to name another person to make health care decisions for you when you
810 cannot make decisions or speak for yourself.
811 Part II: Allows you to record your wishes about health care in writing.
812 Part III: Tells you how to revoke the form.
813 Part IV: Makes your directive legal.
814 __________________________________________________________________________
815
816 Name: __________________________________________________ __________________
817 Street Address: _____________________________________________________________
818 City, State, Zip: ____________________________________________________________
819 Telephone: _________________________ Cell Phone: ____________________________
820 Birth date: _____________
821 ____________________________________________________________________________
822
823 A. No Agent
824 ______ I do not want to choose an agent. Initial if you do not want to name an agent,
825 then go to Part II. Do not name an agent below. No individual, organization, family
826 member, health care provider, lawyer, or insurer should force you to name an agent.
827 B. My Agent
828 Agent's Name:
829 ______________________________________________________________
830 Street Address:
831 ______________________________________________________________
832 City, State, Zip:
833 ______________________________________________________________
834 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
835 C. Alternate Agent
836 Alternate Agent's Name:
837 ______________________________________________________
838 Street Address:
839 ______________________________________________________________
840 City, State, Zip:
841 ______________________________________________________________
842 Home Phone: ( ) _________ Cell Phone: ( ) _________ Work Phone: ( ) __________
843 D. Agent's Authority
844 If I cannot make decisions or speak for myself, my agent has the power to make any health care
845 decision I would have had the power to make, including:
846 Consent to, refuse, or withdraw any health care, including, but not limited to life sustaining
847 care, such as food and fluids by tube, use of antibiotics, CPR (cardiopulmonary resuscitation),
848 and dialysis, and mental health care, such as convulsive therapy and psychoactive medications.
849 Stop or not start health care that is keeping me alive or might extend my life.
850 Hire and fire health care providers.
851 Ask questions and get answers from health care providers.
852 Consent to admission or transfer to a health care provider or health care facility, including a
853 mental health facility, subject to the limits in Section E, below.
854 Get copies of my medical records.
855 Ask for consultations or second opinions.
856 E. Other Authority
857 My agent has the powers below ONLY IF I place my initials over "agree" next to the statement.
858 I authorize my agent to:
859 Agree _____ Disagree _____ Get copies of my medical records at any time, even when
860 I can speak for myself.
861 Agree _____ Disagree _____ Admit me to a licensed health care facility, such as a
862 hospital, nursing home, assisted living, or other congregate facility for long-term placement
863 other than convalescent or recuperative care, unless I agree to be admitted at that time.
864 F. I wish to limit or expand the powers of my health care agent as follows:
865 ____________________________________________________________________________
866 ____________________________________________________________________________
867 G. Nomination of Guardian
868 Agree _____ Disagree _____ By appointing an agent in this document, I intend to avoid
869 a court-supervised guardianship, if possible. If I need a court-appointed guardian, I want the
870 agent I have appointed in this form to be my guardian. If that agent cannot or will not act as
871 my guardian, I want my alternate agent to be my guardian.
872 H. Consent to Participate in Medical Research
873 Agree _____ Disagree _____ I authorize my agent to consent to my participation in
874 medical research or clinical trials, even if I may not benefit from the results.
875 I. Consent to Organ Donation
876 Agree _____ Disagree _____ My agent may consent to the donation of my organs for
877 the purpose of organ transplantation.
878 J. Agent's Authority to Override Expressed Wishes
879 Agree _____ Disagree _____ My agent may make decisions about health care that are
880 different from the instructions in Part II of this form.
881 __________________________________________________________________________
882
883 My current instructions to my health care providers should be followed, so long as I can make
884 health care decisions, even if the instructions appear to conflict with these or other advance
885 directives. My health care providers should always provide comfort measures and health care
886 to keep me as comfortable and functional as possible.
887 A. Health Care Instructions
888 Initial one of the following:
889 ________ I choose to let my agent decide. I have chosen my agent carefully. I have
890 talked with my agent about my health care wishes. I trust that my agent will make the decision
891 about end-of-life care that I would want under the circumstances. Except as it is limited in
892 Section B, below, my agent's power includes the power to agree to stop or not start life
893 sustaining treatment, as described in Part I, Section D.
894 ______ I want this instruction followed without condition.
895 Go to Section C. Do not check conditions in Section B.
896 ______ I want this instruction followed only after the conditions in Section B are met.
897 ______ I want to prolong life. Regardless of my condition or prognosis, I want my
898 health care providers to try to keep me alive as long as possible, within the limits of generally
899 accepted health care standards. Go to Section C. Do not check conditions in Section B.
900 ______ I choose NOT to receive care for the purpose of prolonging life. I authorize
901 the withholding or withdrawal of life sustaining treatments, including, but not limited to food
902 and fluids by tube, use of antibiotics, CPR, or dialysis administered for the purpose of
903 extending my life. I do want comfort care and routine medical care that will keep me as
904 comfortable and functional as possible, even if such care may extend my life.
905 ______ I want this instruction followed without condition. Go to Section C. Do not
906 check conditions in Section B.
907 ______ I want this instruction followed only if the conditions in Section B are met.
908 ______ I choose not to provide instructions about end-of-life care in this directive.
909 Go to Part III.
910 Comments:
911 ____________________________________________________________________________
912 ____________________________________________________________________________
913 ____________________________________________________________________________
914 B. Conditions for Withdrawal of Life Sustaining Care
915 My health care team may withhold or withdraw life sustaining treatment based on this directive
916 or at the instruction of my agent or a default surrogate only if the conditions that I initial below
917 are met. If your wishes are without condition, do not complete this section.
918 Agree _____ Disagree _____ I have a progressive illness that will cause death.
919 Agree _____ Disagree _____ I am close to death and am unlikely to recover.
920 Agree _____ Disagree _____ I cannot communicate and it is unlikely that my condition
921 will improve.
922 Agree _____ Disagree _____ I do not recognize my friends or family and it is unlikely
923 that my condition will improve.
924 Agree _____ Disagree _____ I am in a persistent vegetative state.
925 Additional or Other Instructions:
926 ____________________________________________________________________________
927 ____________________________________________________________________________
928
929 I may revoke this directive by:
930 1. Writing "void" across the form, or burning, tearing, or otherwise destroying or defacing the
931 document or asking another person to do the same on my behalf;
932 2. Signing or directing another person to sign a written revocation on my behalf;
933 3. Stating that I wish to revoke the directive in the presence of a witness who meets the
934 requirements of the witness in Part IV, below, and who will not be appointed as agent or
935 become a default surrogate when the directive is revoked; or
936 4. Signing a new directive. (If you sign more than one Advance Health Care Directive, the
937 most recent one applies.)
938
939 I sign this voluntarily. I understand the choices I have made. I declare that I am emotionally
940 and mentally able to make this directive.
941 Date: ____________________________________
942 Signature: ________________________________________________
943 I have witnessed the signing of this directive, and I am not:
944 1. Related to the declarant by blood or marriage;
945 2. Entitled to any portion of the declarant's estate according to the laws of intestate succession
946 of Utah or under any will or codicil of the declarant;
947 3. Directly financially responsible for the declarant's medical care;
948 4. A health care provider who is providing care to the declarant or an administrator at a health
949 care facility in which the declarant is receiving care; or
950 5. The appointed agent.
951 Signature of Witness:
952 _________________________________________________________
953 Section 19. Section 75-2a-1117 is enacted to read:
954 75-2a-1117. Illegal destruction or falsification of health care directive.
955 (1) A person is guilty of a class B misdemeanor if the person:
956 (a) willfully conceals, cancels, defaces, obliterates, or damages a health care directive
957 of another without the declarant's consent; or
958 (b) falsifies, forges, or alters a health care directive or a revocation of the health care
959 directive of another individual.
960 (2) A person is guilty of criminal homicide if:
961 (a) the person:
962 (i) falsifies or forges the health care directive of another; or
963 (ii) willfully conceals or withholds personal knowledge of:
964 (A) the revocation of a health care directive; or
965 (B) disqualification of a surrogate; and
966 (b) the actions described in Subsection (2)(a) cause a withholding or withdrawal of life
967 sustaining procedures contrary to the wishes of a declarant resulting in the death of the
968 declarant.
969 Section 20. Section 75-2a-1118 is enacted to read:
970 75-2a-1118. Health care directive effect on insurance policies.
971 (1) If an individual makes a health care directive under this part, the health care
972 directive does not affect in any manner:
973 (a) the obligation of any life or medical insurance company regarding any policy of life
974 or medical insurance;
975 (b) the sale, procurement, or issuance of any policy of life or health insurance; or
976 (c) the terms of any existing policy.
977 (2) (a) Notwithstanding any terms of an insurance policy to the contrary, an insurance
978 policy is not legally impaired or invalidated in any manner by:
979 (i) withholding or withdrawing life sustaining procedures; or
980 (ii) following directions in a health care directive executed as provided in this part.
981 (b) Following health care instructions in a health care directive does not constitute
982 legal cause for failing to pay life or health insurance benefits. Death that occurs after following
983 the instructions of an advance health care directive or a surrogate's instructions does not for any
984 purpose constitute a suicide or homicide or legally impair or invalidate a policy of insurance or
985 an annuity providing a death benefit.
986 (3) (a) The following may not require an individual to execute a directive under this
987 part as a condition for being insured for or receiving health care or life insurance contract
988 services:
989 (i) a health care provider;
990 (ii) a health care facility;
991 (iii) a health maintenance organization;
992 (iv) an insurer issuing disability, health, or life insurance;
993 (v) a self-insured employee welfare or benefit plan;
994 (vi) a nonprofit medical service corporation or mutual nonprofit hospital service
995 corporation; or
996 (v) any other person, firm, or entity.
997 (b) Nothing in this part:
998 (i) may be construed to require an insurer to insure risks otherwise considered by the
999 insurer as not a covered risk;
1000 (ii) is intended to impair or supersede any other legal right or legal responsibility which
1001 an individual may have to effect the withholding or withdrawal of life sustaining procedures in
1002 any lawful manner; or
1003 (iii) creates any presumption concerning the intention of an individual who has not
1004 executed a health care directive.
1005 Section 21. Section 75-2a-1119 is enacted to read:
1006 75-2a-1119. Judicial relief.
1007 A district court may enjoin or direct a health care decision, or order other equitable
1008 relief based on a petition filed by:
1009 (1) a patient;
1010 (2) an agent of a patient;
1011 (3) a guardian of a patient;
1012 (4) a default surrogate of a patient;
1013 (5) a health care provider of a patient;
1014 (6) a health care facility providing care for a patient; or
1015 (7) an individual who meets the requirements of Section 75-2a-1107 .
1016 Section 22. Section 75-2a-1120 is enacted to read:
1017 75-2a-1120. Reciprocity.
1018 Unless otherwise provided in the health care directive:
1019 (1) a health care provider or health care facility may, in good faith, rely on any health
1020 care directive, power of attorney, or similar instrument:
1021 (a) executed in another state; or
1022 (b) prior to January 1, 2008, executed in this state under the provisions of Chapter 2,
1023 Part 11, Personal Choice and Living Will Act; and
1024 (2) the health care directive described in Subsection (1) is presumed to comply with the
1025 requirements of this part.
1026 Section 23. Section 75-2a-1121 is enacted to read:
1027 75-2a-1121. Effect of act.
1028 The Advance Health Care Directive Act created in this part does not:
1029 (1) create a presumption concerning the intention of an individual who has not made or
1030 who has revoked an advance health care directive;
1031 (2) authorize mercy killing, assisted suicide, or euthanasia; and
1032 (3) authorize the provision, withholding, or withdrawal of health care, to the extent
1033 prohibited by the laws of this state.
1034 Section 24. Section 75-2a-1122 is enacted to read:
1035 75-2a-1122. Pregnancy.
1036 A health care directive that provides for the withholding or withdrawal of life
1037 sustaining procedures has no force during the course of a declarant's pregnancy.
1038 Section 25. Section 75-2a-1123 is enacted to read:
1039 75-2a-1123. Provisions cumulative with existing law.
1040 The provisions of this chapter are cumulative with existing law regarding an
1041 individual's right to consent or refuse to consent to medical treatment and do not impair any
1042 existing rights or responsibilities that a health care provider, an individual, including a minor or
1043 incapacitated individual, or an individual's family or surrogate may have in regard to the
1044 provision, withholding or withdrawal of life sustaining procedures under the common law or
1045 statutes of the state.
1046 Section 26. Section 76-5-111 is amended to read:
1047 76-5-111. Abuse, neglect, or exploitation of a vulnerable adult -- Penalties.
1048 (1) As used in this section:
1049 (a) "Abandonment" means a knowing or intentional action or inaction, including
1050 desertion, by a person or entity acting as a caretaker for a vulnerable adult that leaves the
1051 vulnerable adult without the means or ability to obtain necessary food, clothing, shelter, or
1052 medical or other health care.
1053 (b) "Abuse" means:
1054 (i) attempting to cause harm, intentionally or knowingly causing harm, or intentionally
1055 or knowingly placing another in fear of imminent harm;
1056 (ii) causing physical injury by knowing or intentional acts or omissions;
1057 (iii) unreasonable or inappropriate use of physical restraint, medication, or isolation
1058 that causes or is likely to cause harm to a vulnerable adult that is in conflict with a physician's
1059 orders or used as an unauthorized substitute for treatment, unless that conduct furthers the
1060 health and safety of the adult; or
1061 (iv) deprivation of life-sustaining treatment, except:
1062 (A) as provided in Title 75, Chapter [
1063 Advance Health Care Directive Act; or
1064 (B) when informed consent, as defined in this section, has been obtained.
1065 (c) "Business relationship" means a relationship between two or more individuals or
1066 entities where there exists an oral or written agreement for the exchange of goods or services.
1067 (d) "Caretaker" means any person, entity, corporation, or public institution that
1068 assumes the responsibility to provide a vulnerable adult with care, food, shelter, clothing,
1069 supervision, medical or other health care, or other necessities. "Caretaker" includes a relative
1070 by blood or marriage, a household member, a person who is employed or who provides
1071 volunteer work, or a person who contracts or is under court order to provide care.
1072 (e) "Deception" means:
1073 (i) a misrepresentation or concealment:
1074 (A) of a material fact relating to services rendered, disposition of property, or use of
1075 property intended to benefit a vulnerable adult;
1076 (B) of the terms of a contract or agreement entered into with a vulnerable adult; or
1077 (C) relating to the existing or preexisting condition of any property involved in a
1078 contract or agreement entered into with a vulnerable adult; or
1079 (ii) the use or employment of any misrepresentation, false pretense, or false promise in
1080 order to induce, encourage, or solicit a vulnerable adult to enter into a contract or agreement.
1081 (f) "Elder adult" means a person 65 years of age or older.
1082 (g) "Endeavor" means to attempt or try.
1083 (h) "Exploitation" means the offense described in Subsection (4).
1084 (i) "Harm" means pain, mental anguish, emotional distress, hurt, physical or
1085 psychological damage, physical injury, suffering, or distress inflicted knowingly or
1086 intentionally.
1087 (j) "Informed consent" means:
1088 (i) a written expression by the person or authorized by the person, stating that the
1089 person fully understands the potential risks and benefits of the withdrawal of food, water,
1090 medication, medical services, shelter, cooling, heating, or other services necessary to maintain
1091 minimum physical or mental health, and that the person desires that the services be withdrawn.
1092 A written expression is valid only if the person is of sound mind when the consent is given, and
1093 the consent is witnessed by at least two individuals who do not benefit from the withdrawal of
1094 services; or
1095 (ii) consent to withdraw food, water, medication, medical services, shelter, cooling,
1096 heating, or other services necessary to maintain minimum physical or mental health, as
1097 permitted by court order.
1098 (k) "Intimidation" means communication conveyed through verbal or nonverbal
1099 conduct which threatens deprivation of money, food, clothing, medicine, shelter, social
1100 interaction, supervision, health care, or companionship, or which threatens isolation or harm.
1101 (l) (i) "Isolation" means knowingly or intentionally preventing a vulnerable adult from
1102 having contact with another person by:
1103 (A) preventing the vulnerable adult from receiving visitors, mail, or telephone calls,
1104 contrary to the express wishes of the vulnerable adult, including communicating to a visitor
1105 that the vulnerable adult is not present or does not want to meet with or talk to the visitor,
1106 knowing that communication to be false;
1107 (B) physically restraining the vulnerable adult in order to prevent the vulnerable adult
1108 from meeting with a visitor; or
1109 (C) making false or misleading statements to the vulnerable adult in order to induce the
1110 vulnerable adult to refuse to receive communication from visitors or other family members.
1111 (ii) The term "isolation" does not include an act intended to protect the physical or
1112 mental welfare of the vulnerable adult or an act performed pursuant to the treatment plan or
1113 instructions of a physician or other professional advisor of the vulnerable adult.
1114 (m) "Lacks capacity to consent" means an impairment by reason of mental illness,
1115 developmental disability, organic brain disorder, physical illness or disability, chronic use of
1116 drugs, chronic intoxication, short-term memory loss, or other cause to the extent that a
1117 vulnerable adult lacks sufficient understanding of the nature or consequences of decisions
1118 concerning the adult's person or property.
1119 (n) "Neglect" means:
1120 (i) failure of a caretaker to provide nutrition, clothing, shelter, supervision, personal
1121 care, or dental or other health care, or failure to provide protection from health and safety
1122 hazards or maltreatment;
1123 (ii) failure of a caretaker to provide care to a vulnerable adult in a timely manner and
1124 with the degree of care that a reasonable person in a like position would exercise;
1125 (iii) a pattern of conduct by a caretaker, without the vulnerable adult's informed
1126 consent, resulting in deprivation of food, water, medication, health care, shelter, cooling,
1127 heating, or other services necessary to maintain the vulnerable adult's well being;
1128 (iv) intentional failure by a caretaker to carry out a prescribed treatment plan that
1129 results or could result in physical injury or physical harm; or
1130 (v) abandonment by a caretaker.
1131 (o) "Physical injury" includes damage to any bodily tissue caused by nontherapeutic
1132 conduct, to the extent that the tissue must undergo a healing process in order to be restored to a
1133 sound and healthy condition, or damage to any bodily tissue to the extent that the tissue cannot
1134 be restored to a sound and healthy condition. "Physical injury" includes skin bruising, a
1135 dislocation, physical pain, illness, impairment of physical function, a pressure sore, bleeding,
1136 malnutrition, dehydration, a burn, a bone fracture, a subdural hematoma, soft tissue swelling,
1137 injury to any internal organ, or any other physical condition that imperils the health or welfare
1138 of the vulnerable adult and is not a serious physical injury as defined in this section.
1139 (p) "Position of trust and confidence" means the position of a person who:
1140 (i) is a parent, spouse, adult child, or other relative by blood or marriage of a vulnerable
1141 adult;
1142 (ii) is a joint tenant or tenant in common with a vulnerable adult;
1143 (iii) has a legal or fiduciary relationship with a vulnerable adult, including a
1144 court-appointed or voluntary guardian, trustee, attorney, or conservator; or
1145 (iv) is a caretaker of a vulnerable adult.
1146 (q) "Serious physical injury" means any physical injury or set of physical injuries that:
1147 (i) seriously impairs a vulnerable adult's health;
1148 (ii) was caused by use of a dangerous weapon as defined in Section 76-1-601 ;
1149 (iii) involves physical torture or causes serious emotional harm to a vulnerable adult; or
1150 (iv) creates a reasonable risk of death.
1151 (r) "Sexual exploitation" means the production, distribution, possession, or possession
1152 with the intent to distribute material or a live performance depicting a nude or partially nude
1153 vulnerable adult who lacks the capacity to consent, for the purpose of sexual arousal of any
1154 person.
1155 (s) "Undue influence" occurs when a person uses the person's role, relationship, or
1156 power to exploit, or knowingly assist or cause another to exploit, the trust, dependency, or fear
1157 of a vulnerable adult, or uses the person's role, relationship, or power to gain control
1158 deceptively over the decision making of the vulnerable adult.
1159 (t) "Vulnerable adult" means an elder adult, or an adult 18 years of age or older who
1160 has a mental or physical impairment which substantially affects that person's ability to:
1161 (i) provide personal protection;
1162 (ii) provide necessities such as food, shelter, clothing, or medical or other health care;
1163 (iii) obtain services necessary for health, safety, or welfare;
1164 (iv) carry out the activities of daily living;
1165 (v) manage the adult's own resources; or
1166 (vi) comprehend the nature and consequences of remaining in a situation of abuse,
1167 neglect, or exploitation.
1168 (2) Under any circumstances likely to produce death or serious physical injury, any
1169 person, including a caretaker, who causes a vulnerable adult to suffer serious physical injury or,
1170 having the care or custody of a vulnerable adult, causes or permits that adult's person or health
1171 to be injured, or causes or permits a vulnerable adult to be placed in a situation where the
1172 adult's person or health is endangered, is guilty of the offense of aggravated abuse of a
1173 vulnerable adult as follows:
1174 (a) if done intentionally or knowingly, the offense is a second degree felony;
1175 (b) if done recklessly, the offense is third degree felony; and
1176 (c) if done with criminal negligence, the offense is a class A misdemeanor.
1177 (3) Under circumstances other than those likely to produce death or serious physical
1178 injury any person, including a caretaker, who causes a vulnerable adult to suffer harm, abuse,
1179 or neglect; or, having the care or custody of a vulnerable adult, causes or permits that adult's
1180 person or health to be injured, abused, or neglected, or causes or permits a vulnerable adult to
1181 be placed in a situation where the adult's person or health is endangered, is guilty of the offense
1182 of abuse of a vulnerable adult as follows:
1183 (a) if done intentionally or knowingly, the offense is a class A misdemeanor;
1184 (b) if done recklessly, the offense is a class B misdemeanor; and
1185 (c) if done with criminal negligence, the offense is a class C misdemeanor.
1186 (4) (a) A person commits the offense of exploitation of a vulnerable adult when the
1187 person:
1188 (i) is in a position of trust and confidence, or has a business relationship, with the
1189 vulnerable adult or has undue influence over the vulnerable adult and knowingly, by deception
1190 or intimidation, obtains or uses, or endeavors to obtain or use, the vulnerable adult's funds,
1191 credit, assets, or other property with the intent to temporarily or permanently deprive the
1192 vulnerable adult of the use, benefit, or possession of the adult's property, for the benefit of
1193 someone other than the vulnerable adult;
1194 (ii) knows or should know that the vulnerable adult lacks the capacity to consent, and
1195 obtains or uses, or endeavors to obtain or use, or assists another in obtaining or using or
1196 endeavoring to obtain or use, the vulnerable adult's funds, assets, or property with the intent to
1197 temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of his
1198 property for the benefit of someone other than the vulnerable adult;
1199 (iii) unjustly or improperly uses or manages the resources of a vulnerable adult for the
1200 profit or advantage of someone other than the vulnerable adult;
1201 (iv) unjustly or improperly uses a vulnerable adult's power of attorney or guardianship
1202 for the profit or advantage of someone other than the vulnerable adult;
1203 (v) involves a vulnerable adult who lacks the capacity to consent in the facilitation or
1204 furtherance of any criminal activity; or
1205 (vi) commits sexual exploitation of a vulnerable adult.
1206 (b) A person is guilty of the offense of exploitation of a vulnerable adult as follows:
1207 (i) if done intentionally or knowingly and the aggregate value of the resources used or
1208 the profit made is or exceeds $5,000, the offense is a second degree felony;
1209 (ii) if done intentionally or knowingly and the aggregate value of the resources used or
1210 the profit made is less than $5,000 or cannot be determined, the offense is a third degree
1211 felony;
1212 (iii) if done recklessly, the offense is a class A misdemeanor; or
1213 (iv) if done with criminal negligence, the offense is a class B misdemeanor.
1214 (5) It does not constitute a defense to a prosecution for any violation of this section that
1215 the accused did not know the age of the victim.
1216 (6) An adult is not considered abused, neglected, or a vulnerable adult for the reason
1217 that the adult has chosen to rely solely upon religious, nonmedical forms of healing in lieu of
1218 medical care.
1219 Section 27. Repealer.
1220 This bill repeals:
1221 Section 75-2-1101, Short title.
1222 Section 75-2-1102, Intent statement.
1223 Section 75-2-1103, Definitions.
1224 Section 75-2-1104, Directive for medical services.
1225 Section 75-2-1105, Directive for medical services after injury or illness is incurred.
1226 Section 75-2-1105.5, Emergency medical services -- Directive not to resuscitate.
1227 Section 75-2-1106, Special power of attorney.
1228 Section 75-2-1107, Medical services for terminal persons without a directive.
1229 Section 75-2-1108, Current desires of declarant.
1230 Section 75-2-1109, Pregnancy.
1231 Section 75-2-1110, Notification to physician.
1232 Section 75-2-1111, Revocation of directive.
1233 Section 75-2-1112, Physician compliance with directive.
1234 Section 75-2-1113, Presumption of validity of directive.
1235 Section 75-2-1114, Physician liability for compliance with directive.
1236 Section 75-2-1115, Illegal destruction or falsification of directive.
1237 Section 75-2-1116, Compliance with directive is not suicide.
1238 Section 75-2-1117, No insurance or health care provider may require a directive.
1239 Section 75-2-1118, Directive not mercy killing.
1240 Section 75-2-1119, Reciprocity.
1241 Section 28. Effective date.
1242 This bill takes effect on January 1, 2008.
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